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Oral Argument 2025-005 Oregon Coast Alliance v. Coos County
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=obY2mSg4rg0). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.
So either we're having more technical difficulties on our end or I was unmuted. There you are. Okay. Would you like to reserve any time for rebuttal? You may reserve to five minutes. Uh three minutes, please. Okay. I will keep track of time on my end, but ask that you also keep track on your own end. And without further delay, please say your name for the record and begin. Good afternoon to the board and Mr. Clouse. Uh Sean Malone on behalf of petitioner Oregon Coast Alliance. Uh the first assignment of error deals with the issue of incorporation. Uh the response brief just highlights how ambiguous the incorporations are. The decision could very easily have been done in a manner that doesn't make a puzzle or a game out of determining what the findings are. Uh the ambi ambiguities here include the fact that the uh findings essentially just state that uh they're incorporating the staff reports. they don't identify whether that includes the exhibits or not. Um, typically when I review a staff report, staff report uh includes exhibits and I would review those exhibits as well. I tend to think of those things as the staff report. Uh there's also ambiguities about uh things submitted from staff not technically named a staff report but you defined as or identified as a supplemental report from uh the planning director or a memo from Jill Rolf who is the planning director. Uh so it's it it becomes difficult to exec exactly know what the decision is. Um, in the response, the applicant alleges that the staff reports apparently do not include the exhibits. Uh, why that is is not clear. Uh, and we're also not hearing from the, uh, county on this, which is the one that which is the per the entity that adopted the decision uh, who would actually know this. So, we've only heard from the applicant. Um, so the applicant just seems to be picking one side of this. Uh, we we we're acknowledging that it is ambiguous. uh the applicant seems to find some certainty in there. Uh it's not uncommon to incorporate the applicant's narrative and expert reports that are part of the staff report as exhibits, which is the case here. Um also, yes, I have a question. Um I'm I'm trying to understand how this is an independent basis for remand. This isn't a case where there are no findings. I mean, there's plenty of findings from the board. There's findings from the planning commission that are that no one seems to dispute or incorporate it. It seems that you know if if if there's any arguments that we have here that are relying on something in those staff reports or perhaps the attached exhibits that this would come into play. So I guess but I don't I'm unaware if that's the case. So let me know if if that is. But it seems like even if you're right, that would just mean that the staff report is not part of the incorporated findings and then we just go on to look to see whether things are supported by substantial evidence or not. So maybe if you could explain to me how this is an independent basis for Mand. Well, in response, I would say look to the two cases that we cited, Central Oregon Land Watch as well as the Gonzalez case. uh in those cases uh Luba appeared to um remand based on those arguments in those cases not only this notion of clearly identifying what is incorporated into the findings um but also sort of the the extreme amount of pages that could potentially be within the findings. In central Oregon land watch case, I think it was like 700 pages out of a 2500 page record. Here we have roughly 300 uh 64 pages out of a 513 page record. Um, right. But in both those cases, I think the the county is in both of them. The the local government was to satisfy an approval criteria and the only findings they could point to were findings that were in these incorporations. There weren't any independent findings to meet those approval criterion. So the question was whether is this approval criterion met and they were county was relying on oh look at the stuff we incorporated and then we're like well we can't tell what you incorporated so you can't rely on it here and I think we're missing that first step. What are we arguing about that we have to look at to what's being incorporated or not. So so that's that kind of gets back to so even if you're right why does that matter? What approval what approval criterion is are they relying on something in the staff reporter exhibits to satisfy? Well, I think that question sort of assumes that I know what the the the what is incorporated. I mean, if it's ambiguous, then clearly we have a clear incorporation as to the planning commission's decision. We also have a clear identification of uh you know the the actual adopted findings you know how many other pages of that there was um it it it it's a difficult question to answer because you if I don't know what is incorporated into the into the findings and um and then you're asking me a question of well are do any of these things have to do with any of those incorporated findings if I don't know the answer to what is incorporated into the findings, then it's I find it difficult to be able to provide you an an accurate answer if I don't know uh what else is incorporated into the findings. Am I going to get a response brief that says, "Oh, he didn't challenge this little thing over here uh you know, in this this this exhibit to the staff report." And that very well could have happened, but they're taking a position that the exhibits weren't uh incorporated, which is completely ambiguous from the findings themselves. So I I I think it's I'm I'm being presented with a question that can't have a clear answer because it's ambiguous as to what was incorporated. But yes, I do concede that there are some findings that are clearly part of the decision. But when challenging a decision, you kind of want to know what all of the decision entails. Um I don't know if I have a better answer than that. Okay, that's good. Thank you. So just to move on to these uh I want to delve into that a little bit further. So I think you're arguing that when there is an overincclusive incorporation or unclear incorporation of findings that's kind of a per se procedural error because a petitioner is then in a position to have to identify what the decision is to then assign error. So the after the fact that if the red brief does not rely on findings that are not that are unambiguously incorporated that doesn't solve the initial error or create a harmless error situation. I think that's accurate and let me let me illustrate it in this way. Uh the response brief points to uh this statement that is on page uh record page seven appendix page four. They say similarly there were staff reports issued in the course of this application and appeal. Each address standards for the decision based on the record and now they're saying well those standards are only found in the the sort of body of the staff report. But if we then go to the exhibits which contains all the public testimony, public opposition testimony, applicants testimony, all of the all of that testimony addresses the standards. So even the incorporation statement says well it's clear because we're you just have to look to where they're addressing the standards. Well that's the whole thing what we're doing here in land use is addressing the standards. All the testimony address those standards and all that testimony is part of the exhibits. So it's it it it's this very difficult situation someone finds themselves in and the cure is so easy just accurately uh concisely identify what is in the findings. If it's ambiguous, it becomes a puzzle. It becomes a game. And that really frustrates uh our obligations uh to, you know, try and challenge this decision. And beyond that, it frustrates our ability to even comply with the procedural rules of LUBA to, for example, attach the decision uh to the uh to to the petition for review. And when the potential decision is 530 pages uh or or some or excuse me 400 and some pages excuse 364 pages sorry uh out of a 513 page record it becomes unwieldy. It becomes almost impossible. Um but obviously I'm running out of time. Jump to the third assignment of error. Uh housing's not allowed. That seems very straightforward. Housing was included in this. Doesn't matter if it's existing. doesn't matter if it's proposed. Um there's there's dwellings on the property that are part of the golf course. Uh so that that seems to be a very clear violation. Uh the second sub assignment of air and the third assignment of error is is one that I I I find to be very compelling. Um the rule obviously we're we're dealing with a rule that's sort of a generality. 120 to 150 acres is what your golf course can be. The Oregon Coast Alliance v Curt County case established that that's not a strict rule and I I I understand that. I concede that in that case 198 acre golf course was allowed to go through uh based on sort of like the Scottish style lengths um type of golf course. But here we're dealing with something much more significant. We're we're dealing with something almost twice that size at about 3 42 acres. Uh so the concern here is that we are dealing with something that you know a generalized rule which has to have some upper limitation. It's not it's not that it's not that that rule has no effect or no teeth. It has to it should have something despite this being a sort of generality. But um when we uh more than double the size of that general rule, are we are we stretching this rule so far that we're breaking the rule? Uh that's the concern here. And then obviously with the background we always have when we're dealing with uh cases on a land agricultural land uh that there's an agricultural land use policy set by the legislature to preserve this stuff and um if we are just sort of willy-nilly with these rules and expanding these um these uh the acreage beyond significantly beyond what the rule says, then I I think we're we're getting into the territory where we're actually violating ating that rule. Um I see my clock says 12. I'm not really sure there if if we started at at 10 and a half right now. Okay, thank you. That makes sense. Um okay, address those two pretty quickly. Uh so we can go back to the sort of second assignment of error. The notion that these structures as location is unknown is another difficulty for someone trying to uh pin down impacts to adjacent farm uses under the farm impacts test. uh the findings can see that the geohhazards can't be known because the structures locations are not known but somehow we can know the impacts to farm uses even though the location of the structures is not known obviously that's contradictory and the farm impacts test should be deferred uh when the loc once the locations are actually known so what is an opponent to do when the locations of the buildings are not known we cannot define the baseline for form impacts test uh if the locations are not known we have a lack of specificity in favor of generalizations. There's allegations that the argument is not sufficiently developed, which obviously I find ironic because the locations aren't even known. Um and and we've identified these various impacts. You know, what what are your number of visitors? We don't know. Amount of garbage coming off of these these uh the clubouses, that's unknown. How much traffic? Uh potential for trespass, attraction of corridors and crows, which come along with human activity. Um and then we have uh the findings and the response alleged that these are all things that typically occur in proximity to a farming operation. You're welcome to continue on into your rebuttal or you can reserve your time. I just finished this thought. Uh you know along with a golf course comes comes a lot of things but uh for example crows birds are preying on a lot of the grubs and so forth. We presented that information in the record. So, so these these aren't aren't just something normal in in proximity to any sort of commercial operation. Uh, and I'll turn it over to Mr. Close. Thank you. Two and a half minutes for your rebuttal and we'll turn to the intervenor for your argument. Thank you, Bill Close on behalf of the intervenor. Um, uh, it's been a long time since I've been at I um I think I'll I'll start with the first assignment of error and the question of the findings. I I think uh referee Wilson put his finger on the the soft point here. I mean our our brief explains why we think what constitutes the findings are clear and I I won't hash through that again but I I think the critical question is um in order to make this an independent um assignment of error I think Orca needs to be able to point to a different assignment of error and explain why resolving that assignment of error depends on resolving some genuine ambiguity about what constitutes the findings and and we really don't have that here. Um there's really nothing else in this uh petition that requires resolving some real or even imagined ambiguity about what constitutes findings. Um and so I think that's all I need to say about that. So the cases that petitioner relies on stand for the proposition that uh failure to clearly incorporate ambiguous incorporation or over incorporation by reference of material in the record is findings as part of the decision is some sort of a per se procedural error that prejudices the petitioner's um right to a hearing at Luba. Is there anything in those two cases that support that? I I I don't I disagree with that, of course. But if you um where is the prejudice that it's fully within Mr. Malone's capabilities to identify some substantive issue and then explain why a perceived ambiguity in what constitutes the findings whether those findings are small, medium or large um and explain why that ambiguity is relevant to the merits of the assignment of error. And we just don't have that here. um that was present in the two cases here and I know Gonzalez is one of them and the other one um central land watch your position is that those cases have those characteristics and this case does not. That's right. That's right. Oh, sorry. I'm done. Sorry. Um is there any place in the second or third assignment of air where you're relying on anything in the staff reports to uh Um, I I can't answer that question off the top of my head. I'll assure you that we're not relying on exhibits that were attached to the staff reports. Um our position is the county uh board's finding is that they're relying on this on the staff reports uh that address um the standards and exhibits attached behind that is not analysis of it's not findings. Um it's really evidence you know ex generically the exhibits tend to be evidence. They're not findings. But again, I think you put your finger on the critical question. Is there a sub a substantive assignment of error here that hinges on the um uh an alleged ambiguity and what constitutes the findings? And the answer here is no. Um jumping to the third assignment of error on the question of uh trespassing housing and uh golf course size. uh the the house issue is is very interesting to me. I think that the simplest response to that I mean it's a pre-existing house. We're stuck with it until it gets scraped. Um I I think the simplest answer to this is that the definition of accessory use and I'm kind of cribbing here. All these words are in the definition but I'm kind of shortening it. Assessor use is one that is incidental to the operation or is necessary to the operation or maintenance or provides goods and services. I've left some words out there, but those are the operative phrases in the definition of an accessory use. And there is nothing about the house that meets the definition of accessory use. It's just there. It's pre-existing. Um it doesn't relate to the operation. it's not necessary for the operation. It doesn't service the golf course population and so it's just not in the category of accessory use. I think that's the main point we we're trying to make. Um then the question of size and golf courses I we're we're smaller than the golf course size for the nap ranch. I think that um the important issue here is that there the size the size of the golf course in the state law is is a generalized statement. There just is no bright line about this. And um my hope would be that Luba doesn't um um draw a bright line uh to resolve an allegation about um a use that comes with just the most general um parameters statute that I don't that's just not called for in the language of the the rule itself. And um uh it's true that this golf course is on a larger tract of land. Uh you you you know you you you put your golf course on the um on the tract of land that you have, not the tract of land that you wish you had. And this tract of land is 342 acres give or take. Uh and um what's not in the 175 acre golf course which is mapped. It's got clear clear lines around it uh is you know leftover stuff. I mean it's flood hazard zone. It's wetlands. It's uh sand dunes. It's scrub. We we we I mean we I can't imagine a situation where we I don't know how we get rid of that. you know, if if the board were to say all of that constitutes a golf course and so you you you can't have more than 100 whatever 150 acres and so you're you you can't have a golf course on something that an attractive land that's bigger than 150 acres. I think the the reasonable approach to this is to look at what is mapped as a golf course, what is approved as a golf course, and uh ignore what's what's beyond that. And we're at 175 acres, and that's in the ballpark of the general parameters of the of the of the rule. That's really all I have to say about um uh in defense. I've got a question. Yeah, I do too. You go ahead. I wanted to jump back to the second assignment on air for a minute. Could you just walk me through your I don't know if it's a waiver or a miles or exhaustion like how I think you're saying we don't even have to get to like the substantial evidence because they didn't challenge the findings that they didn't develop their argument well enough before. Yeah, that's right. I I think this comes back this comes back to the peculiarities of the requirements in the code for u stating an issue on appeal to the county board. This code unlike a lot of codes requires specificity in your um in your statement of your appeal issue. So maybe that requires a little more work than is required in other counties. You know, so be it. Um and with respect to this issue, um the uh petitioner made a very generalized argument in their uh letter of appeal and um and the county board responded to that with, you know, five or six pages of findings and pretty confident set of findings. And now the petitioner is coming back here and really challenging those findings. They're making the they're they're they're making an argument that in at a level of detail that they really had an obligation under the code to make in the context of the appeal that they filed. That that's really it. So I think we use the phrase um in our partic in our response um you know uh undeveloped argument. Well that's really um an argu that's really making the point that this code requires an unusual level of specificity in making your um raising your issue to the board. and they missed that mark and coming to Luba is not the place to to be as specific as the code requires making the appeals issue in the first instance. So your argument is also that because petitioner doesn't challenge the county's finding that that the issues that are raised in the second assignment vera were undeveloped during local appeal. those issues are also not before us for review. Is that right? That's right. That's right. Okay. Putting that aside for a second, if those issues are before us for review, I'd like a little to understand a little bit more the burden of proof for the for the applicant on the farm impacts. Under the rule, the applicant needs to establish no no significant farm impacts. Correct. That's right. And what does the applicant what did the applicant do here? Did they identify impacts? identified the applicant had expert witnesses who presented a factual case as to why there would be no significant impacts to farm uses. And that the crankshaft of that argument was based on the topography and the distance of the farming uses from the golf course. So the activities that will be undertaken on the golf course that could potentially have some farm impact uh will not because of their distance from farming activity in the surrounding properties. That that that's right really world and and the findings are very detailed about this. The uh findings take take the uh the southeast, east, and north perimeter of the uh property, golf course site, and they document the footprint of each farming operation. And they describe the distance in terms of thousands of feet that that farming operation is from the golf course. And then they describe the topographical buffer which is really a a large berm sand probably ancient sand dune or something. The the the um height of that topographic barrier uh in that intervening distance with respect to each farm and it changes a little bit by 10 15 feet or so. And and the basic conclusion is based on the thousands and thousands of feet distance between the golf course and each farm and that topographic barrier uh the find the impacts are not going to be significant. Okay. And then there was it sounds like there was some dispute over what the impacts would be. It doesn't sound like the applicant identified traffic garbage and corvids as potential impacts. Is that accurate? I forget whether there's a mention of those pesky crows anywhere, but the second question I have about that is there seems to be a dispute here about okay, the applicant presented their case on this petitioner arguing that's insufficient because there's no experts in farming activities. They're experts in golf courses but not farming activities. I understand that part of the argument, but the kind of internal waiver argument. Um the issue of where the the buildings will be located, petitioner is arguing, uh they can't know what the farm impacts are. The county can't know what farm impacts are because we don't know where the buildings are located. I think the county reasoned well the petitioner didn't actually say what other impacts there would be that would be affected by the location and so we're concluding that the generalized location is sufficient for us to determine that given the distance from the farming activities there will be no significant impacts. My question is what is then the burden of proof or persuasion once the applicant has made its initial showing on farm impacts for a petitioner to allege additional impacts or present evidence that controverts the applicant's evidence on impacts? What is your view of what the petitioner needed to do in order to raise that issue sufficiently? Well, initially and most importantly, it's our position and the county's position that attorney speculation is not enough to get you into the door for um uh factual allegations. Um attorneys have some fine qualities, but they are they are not fact witnesses. Um uh and is there evidence? Is there any farmer evidence or other expert evidence on these additional impacts that petitioner is arguing there? No farmer uh showed up and said an alleged impacts to a farming operation as far as I know. Uh there's also a a distinction to be drawn between um the um uh generalized location of the buildings uh and um the um you the record shows that the um exact footprint of the buildings is not known. The main buildings are within about a 10 acre cir circumference 10acre circle. Um with respect to geotechnical impacts and geotechnical suitability, um that generalized location means that the geotechnical issue needs to be um resolved in the future, you know, with opportunity for appeal and hearing because when you're looking at geotechnical issues, you need to know the exact footprint. I mean the question could be simply put when you finally settle on a footprint for the club clubhouse are you are you putting it on quicksand you know so you got to know the exact location we run out of time so if you could uh with respect to farm impacts you don't need to know the exact in uh location of the buildings because you're talking about thousands of feet distance and um and intervening intervening topographic barrier. So it's the exact location is relevant for geotechnical and this could be a future hearing on that but it's not relevant for drawing confident conclusions about farm impacts. And I do want to pin you down on an answer before we end your argument on what did the petitioner need to present in order to overcome what the applicant already presented. They needed to have some counterveailing non-ater attorney opinion about the impacts. Is that where your position is? some some evidence, factual evidence from a non- attorney that relates to this proposal on this site, you know, um general, I think generalized textbook information about how life goes on in our world is not adequate when you have on the other side of the balance um the applicants, expert witnesses or if you don't want to consider them experts, the the applicants witnesses providing factual evidence about how this golf course is going to operate um based on their area of expertise or based on their personal experience with how a different golf course operates in the same county. Thank you. There any further questions? Okay. Uh thank you for your argument. appreciate your answers to the questions and we will return to uh petitioner. We went over there on answers for interveners. So, we'll add another minute. You'll have two and a half minutes for your rebuttal. Thank you. Uh I have the Jefferson C the Central Oregon Land Watch B. Jefferson County case in front of me here. I'm just quoting from page nine, slip opinion, starting at line six says, "The board of commissioners decision approving exceptions to goals three and 14 includes some findings of fact and conclusions of law explaining why it concludes that the applicable exception criteria are met. Uh the decision adopts by reference multiple documents containing various findings of fact in staff reports and and intervenor submitt." So there were, you know, some legit actual findings of fact in that case just like there are here. But then there were also all these incorporations. So I don't see that case as something that says there were no sort of explicit findings of fact and the only findings were all these confused incorporations. So I think uh Central Oregon Land Watch is on point there. Uh another point just to get it home is that is there some finding I'm supposed to challenge? And I'm not really going to know that until I get a response brief that that seizes upon these ambiguities and says, uh, you didn't challenge this because we actually did incorporate the exhibits because that's what I meant by saying the staff report. So, it's it's a game that is played and uh I think that it is not difficult to clearly identify what the decision is and that shouldn't be, you know, a whole new game. Um, so if we agreed with you that there's some kind of per se procedural error here, um, would we just remand on the first assignment of error for clear incorporation and not reach the second and third assignments? Well, that's something I thought about obviously and you know my initial reaction is yes so I can identify the actual decision that would make it very that that would be clear. Um, obviously I don't want to sacrifice all my other assignments of air because I think they're pretty good, but um, you know, in the Jefferson County case, obviously the Luba went on to address other assignments of error. Um, I think it most it makes the most sense to if if you agree to remand on that first assignment of error uh, in order to, you know, on remand they could address these other assignments of air in a in a better way or something like that. But, uh, I think that makes the most sense. Uh it's it's the most efficient way to deal with this case. Although I do like my other substance of air. Um we all tend to like the things that we write. Okay. Uh well, we've reached the end of time. Um thank you both for your argument today. That will conclude oral argument. Um the statuto due date for our decision in this appeal is June 13th. We'll let you know that we intend to issue that